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PACKARD v. MOORE

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District Court of Appeal, Second District, Division 2, California.

PACKARD v. MOORE.†

Civ. 11230.

Decided: February 15, 1937

Butcher & Haines, of Santa Barbara, for appellant. Griffith & Thornburgh and Hugh M. Lindsey, all of Santa Barbara, and Holbrook, Taylor, Tarr & Reed, and Thomas Glenn, Jr., all of Los Angeles, for respondent.

This is an appeal by defendant from a judgment against him after a trial before a jury in an action to recover damages for personal injuries resulting from an automobile accident.

Viewing the evidence most favorable to plaintiff (Ah Gett v. Carr, 3 Cal. App. 47, 48, 84 P. 458), the facts in the instant case are:

July 14, 1935, on U. S. Highway No. 101 between Carpinteria and Santa Barbara an automobile driven by defendant was traveling south on the highway, while a car driven by Jerry Rasmussen, in which plaintiff was riding, was going north. Defendant's car suddenly swerved from behind a car which was preceding him, went across the road, and struck the automobile in which plaintiff was riding, which resulted in her receiving personal injuries.

Jerry Rasmussen, the principal witness for plaintiff, was thoroughly discredited by his own testimony. In reference to his statement made during the trial, that he and not the plaintiff was driving the Buick sedan at the time of the accident, he was impeached time and again by his own testimony and the testimony of other witnesses. The record discloses, Rasmussen immediately following the accident told his sister and brother–in–law, Mr. and Mrs. W. S. Mahana, that plaintiff was driving the car when the accident occurred. He made the same statement later on to Dr. Charles S. Stevens and to William J. Garrity. November 30, 1935, he admitted that he signed a written statement, which he later swore to before a notary public, in which he, upon several occasions, stated that plaintiff was the driver. This statement was made in affidavit form in the presence of Rasmussen's attorney, Thomas L. Glenn, Jr., A. D. Haines, and W. S. Mahana. At a still later date, after the insurance company had given Rasmussen $750 for injuries which he received in the accident while riding, as he then claimed, as a passenger, Rasmussen verified the answer to the cross–complaint brought against him by the appellant wherein he neither admitted nor denied that plaintiff was driving the car.

Counsel for plaintiff offered to stipulate that this witness had lied upon occasions prior to the trial. He testified that he concocted the story that plaintiff was driving to save himself from criminal prosecution, because he had no driver's license (although he had told his own attorney that plaintiff was driving and never informed him otherwise until he received the $750 from the insurance company). He further stated that he made a distinction between lying when under oath and otherwise.

Defendant relies for reversal of the judgment upon the proposition that it was prejudicial error for the trial court to (a) receive evidence of the plaintiff's poverty and (b) refuse to declare a mistrial after a witness had testified that the defendant was protected by insurance.

During the course of the trial the following occurred:

A. Dr. G. V. Hamilton, who had treated plaintiff for her injuries, was permitted to testify over objection of defendant's counsel that plaintiff was penniless.

Evidence of the financial condition of the plaintiff in a personal injury case is never admissible. This rule is settled in California by an unbroken line of decisions. 8 Cal.Jur. 134. In reversing a judgment for damages for personal injury, Mr. Justice Van Fleet in Green v. Southern Pac. Co., 122 Cal. 563, 564, 55 P. 577, states the rule in California thus:

“The trial court very clearly committed prejudicial error in admitting before the jury, over defendant's objection, the testimony of the witness Hayes, to the effect that the plaintiff Salona Green, one of the daughters of deceased who was living with him at his death, had no property of her own upon which to maintain herself. This evidence had no pertinent or competent bearing upon the extent of injury suffered by plaintiffs, for which defendant could be held responsible; and its only effect and inevitable tendency was undoubtedly to excite the sympathies of the jury, and improperly influence their finding upon the question of damages. Such evidence is never admissible in a case of this character, for the very simple reason that the extent of a defendant's responsibility for the results of his negligence is not to be measured by the condition, as to affluence or poverty, of the injured party at the time of suffering the injury, since that is a condition for which the defendant is in no way responsible; and as suggested by this court in Mahoney v. San Francisco, etc., Ry. Co., 110 Cal. 471, 476, 42 P. 968 [43 P. 518], in discussing the same question, ‘Such testimony could have been offered for no other purpose than to create prejudice, and should have been excluded.”’

See, also, Mahoney v. San Francisco, etc., Ry. Co., 110 Cal. 471, 476, 42 P. 968, 43 P. 518; Ensign v. Southern Pac. Co., 193 Cal. 311, 321, 223 P. 953; Story v. Green, 164 Cal. 768, 770, 130 P. 870, Ann. Cas.1914B, 961; Johnston v. Beadle, 6 Cal. App. 251, 253, 91 P. 1011.

B. Following Dr. Hamilton's testimony, Irene Fenton was sworn as a witness and gave testimony to the effect that defendant was covered by liability insurance, whereupon defendant's motion to have a mistrial declared was denied.

Evidence that the defendant carries liability insurance protecting him from his own negligence is not admissible in a personal injury action in this state. Squires v. Riffe, 211 Cal. 370, 373, 295 P. 517; Rising v. Veatch, 117 Cal.App. 404, 406, 3 P.(2d) 1023. The admission of such testimony in evidence is prejudicial error, which cannot be cured by the action of the trial court in striking it out and admonishing the jury to disregard it. Squires v. Riffe, 211 Cal. 37, 373, 295 P. 517; Rising v. Veatch, 117 Cal.App. 404, 406, 3 P.(2d) 1023.

In view of the above errors of law plus the fact that the testimony in the present case was sharply in conflict and that plaintiff's principal witness, Jerry Rasmussen, by his own admissions had lied and given contradictory and inconsistent statements on various occasions relative to the facts of the accident, section 4 1/2, article 6 of the Constitution of the State of California is inapplicable.

The judgment appealed from is reversed.

McCOMB, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.

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